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Read the article on traffic accident compensation

Author :Tianjin Bo Law Firm   Time :2019-01-04

In recent years, with the development of China's economy, the number of motor vehicles has increased rapidly, traffic accidents have increased, and damages caused by road and non-road traffic accidents have occupied an increasing proportion in civil litigation cases. Today, the Bogong Practitioner column introduces to you what compensation and compensation standards should be obtained in the case of motor vehicle traffic accident liability disputes.


1. Traffic accident compensation items and calculation formulas


  The traffic accident compensation project refers to the items included in the compensation for the victims caused by the traffic accidents, including medical expenses, lost time, nursing expenses, transportation expenses, hospital food subsidies, funeral expenses, disability compensation, and death compensation. Gold, dependents living expenses, mental damages, disability aids, property losses.

Second, the legal basis for compensation for traffic accidents


Medical fees

Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: Medical expenses are determined based on medical certificates, hospitalization fees and other receipts issued by medical institutions, combined with medical records and diagnostic evidence. Where the indemnity obligor disagrees with the necessity and rationality of treatment, it shall bear the corresponding burden of proof.


The amount of compensation for medical expenses is determined according to the amount actually incurred before the end of the first-instance court debate. Rehabilitation costs, appropriate cosmetic expenses and other follow-up treatment fees necessary for organ function recovery training, the indemnity holder can be sued separately after actual occurrence. However, according to the medical certificate or the conclusion of the appraisal, the inevitable expenses can be compensated together with the medical expenses that have already occurred.


Lost work fee

Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases:


The lost time fee is determined based on the victim's lost time and income status.


The time lost is determined by the certificate issued by the medical institution where the victim is treated. If the victim is disabled due to injury, the time for lost work can be calculated to the day before the fixed date.


If the victim has a fixed income, the lost time is calculated based on the actual reduced income. If the victim has no fixed income, it shall be calculated according to the average income of the last three years; if the victim cannot prove the average income status of the last three years, it can be calculated by referring to the average salary of the employees of the same or similar industry in the previous year. .


Nursing fee

Article 21 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases:


The care fee is determined based on the income status of the caregiver, the number of care, and the duration of care.


If the nursing staff has income, it shall be calculated with reference to the provisions of the lost time fee; if the nursing staff does not have income or hires a care worker, it shall be calculated by reference to the local laborer's labor compensation standard for the same level of care. The nursing staff is in principle one person, but if the medical institution or the appraisal agency has a clear opinion, the number of nursing staff can be determined by reference.


The period of care should be calculated until the victim's ability to resume self-care. If the victim cannot recover his or her self-care ability due to disability, he or she may determine a reasonable period of care according to factors such as his age and health status, but the maximum period is no more than 20 years.


After the victim has been disabled, the level of care should be determined according to the degree of care dependence and the situation in which the disabled assistive device is formulated.


Nutritional fee

Article 24 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases The nutrition fee shall be determined in accordance with the opinions of the medical institution according to the victim's disability.


Transportation fee


Article 22 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: The transportation fee is calculated based on the actual expenses incurred by the victim and his or her necessary accompanying staff for medical treatment or hospitalization. The transportation fee shall be based on the official bill; the relevant evidence shall be consistent with the location, time, number and frequency of medical treatment.


Hospital food allowance

    

Article 23 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: The hospitalized food subsidy can be determined by reference to the travel allowance standard of the general staff of the local state organs. It is indeed necessary for the victim to go to the field for treatment. For objective reasons, the patient cannot be hospitalized. The reasonable part of the accommodation and food expenses actually incurred by the victim himself and his accompanying staff should be compensated.


Funeral expenses

Article 27 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: The funeral expenses are calculated on the basis of the total monthly salary of the previous year's employees in the location of the court where the respondent is located, for a total of six months.



Disability compensation


Article 25 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: According to the degree of disability of the victim or the level of disability, according to the per capita disposable income of urban residents in the previous year Or the per capita net income standard of rural residents, calculated on the date of the fixed disability for 20 years. However, for those over 60 years of age, the age is reduced by one year for each additional year; for those over seventy-five years, it is calculated for five years.

If the victim is disabled due to injury but the actual income has not decreased, or the level of disability is relatively light, but the occupational nuisance seriously affects his employment, the disability compensation can be adjusted accordingly.


Death compensation

Article 29 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: The death compensation is based on the per capita disposable income of urban residents in the previous year of the court where the respondent is located or the per capita net income of rural residents. Calculation. However, for those over 60 years of age, the age is reduced by one year for each additional year; for those over seventy-five years, it is calculated for five years.


Dependent living expenses

Article 28 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases: The living expenses of the dependents are based on the degree of incapacity of the dependents, according to the per capita consumption expenditure of urban residents and rural residents in the previous year The per capita annual living consumption expenditure standard is calculated. If the dependent person is a minor, it is calculated to be 18 years old; if the dependent person has no working ability and no other source of life, it is calculated for 20 years. However, for those over 60 years of age, the age is reduced by one year for each additional year; for those over seventy-five years, it is calculated for five years.


A dependent person refers to a minor who is legally obligated by the victim to be a child, or an adult close relative who has lost his ability to work and has no other source of income. If the dependent person has other supporters, the indemnity obligor shall only compensate the part of the victim that should be borne by law. If there are several dependants, the total annual compensation will not exceed the per capita consumption expenditure of urban residents in the previous year or the per capita annual living consumption expenditure of rural residents.


Mental damage soothing

Articles 9 and 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Torture of Moral Infringement:


Mental damages include the following:

(1) If the person is disabled, it is a disability compensation;

(2) If the person is killed, it is a death compensation;

(3) Spiritual soothing funds for other damages.


The amount of compensation for mental damage is determined by the following factors:

(1) The extent of the fault of the infringer, except as otherwise provided by law;

(2) specific circumstances such as the means, occasions and behaviors of the infringement;

(3) the consequences of the infringement;

(4) The profit situation of the infringer;

(5) The economic ability of the infringer to assume responsibility;

(6) The average living standard of the location of the court where the case is heard.


Where laws and administrative regulations have clear provisions on disability compensation, death compensation, etc., the provisions of laws and administrative regulations shall apply.


Disability aid device fee

The disability aid device fee is calculated in accordance with the reasonable cost standard for ordinary applicable appliances. If the injury has special needs, the corresponding reasonable cost standard may be determined by referring to the opinions of the auxiliary appliance preparation organization.


The replacement period and compensation period of the auxiliary equipment shall be determined with reference to the opinions of the preparation institution.


property loss

Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Traffic Accident Damage Compensation Cases: “Personal casualties” as stipulated in Article 76 of the Road Traffic Safety Law refers to the infringement of a motor vehicle by a traffic accident. Damages caused by personal rights such as the right to life and health, including the damages stipulated in Articles 16 and 22 of the Tort Liability Law.


“Property loss” as stipulated in Article 76 of the Road Traffic Safety Law refers to the loss caused by the traffic accident of a motor vehicle infringing upon the property rights of the infringed person.


Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Traffic Accident Damage Compensation Cases:


If the party concerned requests the infringer to compensate for the following property losses caused by a road traffic accident, the people's court shall support:

    (1) The expenses incurred in repairing damaged vehicles, the loss of items carried by vehicles, and the cost of vehicle rescue;

    (2) The replacement cost of the vehicle is equivalent to the value of the damaged vehicle when the vehicle is lost or cannot be repaired;

    (3) Reasonable outage losses caused by vehicles that are engaged in business activities such as cargo transportation and passenger transportation in accordance with the law;

    (4) The reasonable cost of the usual alternative means of transport for non-operating vehicles that cannot be used continuously.


Author: Secretary Chu Wo, LLB Nankai University Binhai College, Tianjin Bo-designed law firm full-time lawyers, the Ministry of Transport Affairs, Law received professional education system, a solid theoretical foundation of law, good overall quality, in the case of motor vehicle accidents, property There are rich practical experience in the field of insurance contract cases, and the cases handled by them are highly praised by the parties.


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